Litigators know that such anxiety is well-founded. With each new case there is an opportunity for fresh advocacy, fine tuned to the facts and circumstances at issue, but there is no resting on one’s laurels in the halls of justice. The jury listening to your cause is oblivious to your life work and past successes. You are nothing more than a presentation poster board, a mechanism geared to uncover and deliver evidence to a potentially annoyed, distrustful and dispassionate panel. Unwilling participants in a system they do not understand, juries can judge on variables and developments not even imagined by the parties.
The judge and opposing counsel remind the jury that only the evidence is relevant and that nothing you say is important. Only you accept the great responsibility that is yours; one of persuasion. While throughout the trial you question your effectiveness and strategy, the moment of truth approaches when the jury will become witness to your summation. And then a metamorphosis takes place, when, for your client, you are given the opportunity to become a Lincoln, a Mandela, a Gandhi. The courtroom is a microcosm of all larger communities of the world, with great stakes attendant to the outcome of conflict and great danger posed by the ever-looming threat of injustice.
Describe such drama to a layperson and you will either be perceived as arrogant, or become the catalyst for a joke premised upon claimed dishonesty in our profession.
How did our image change from revered champions of justice to thieving manipulators with briefcases? The short answer is that there has been no change, just more access to media. Even in Lincoln’s day, he noted that there was “a vague, popular belief that lawyers are dishonest…[with there being ] no way to test the character of a lawyer until client matters are involved.” Indeed, many presidencies earlier, Thomas Jefferson, himself a lawyer, remarked it is the trade “of lawyers to question everything, yield nothing, and talk by the hour.”
Perhaps the disdain starts with circumstances. After all, no one wakes up and decides that this would be a good day to go to a lawyer’s office. Rather, people seek legal representation to deal with problems, either existing or contemplated. Whether it involves jail, death, injury, divorce, tax or other litigation, most legal consultations focus on serious conflicts people seek to avoid, which are resolved in a place people prefer not to be.
The consultation then follows, with every minute being billed by the lawyer. This infuriates many people who don’t understand that “a lawyer’s time and advice are his stock in trade (another hat tip to Lincoln).” While the public is used to paying by the hour for skilled services, the attorney’s rate is rather high and it is difficult to gauge the usefulness of the information, since the public has no frame of reference. Nor do they understand Latin.
It is also rare for the matter to be concluded during the first consultation. After retention, years go by, and progress reports on the case are, to a layperson, general and duplicative. Finally, trial comes and, assuming that there is no settlement of the matter, a verdict or conclusion is reached. Given the adversarial nature of the process, the best percentage one can obtain prior to trial is 50 percent. In other words, for one side to win, the other side has to lose. These odds for success would be unacceptable coming from other service providers. Imagine a roofer telling you that there’s a 51 percent chance the roof will stay intact, or a dentist telling you that it’s just as likely as not that your filling will fall out. Such assurances have no value in the marketplace. In the law, the client is asked to pay more while understanding less, during one of the most stressful, consequential situations of his life. Even if the client is made whole, there is always the time and expense of litigation that affect the proverbial “bottom line.”
All these factors, coupled with the lobbying and marketing efforts of special interest groups, have affected public perception of our profession, often to the detriment of our clients who are dependent upon the civil justice system for the preservation of their rights. It is our obligation to effectively advocate for these people in whatever climate the venue provides. In doing so, it serves us to remember and be true to those who have come before us.
Mandela, during his legal career, provided free representation for countless impoverished blacks being victimized by apartheid, while following Gandhi’s approach towards non-violent resistance. His efforts on behalf of his clients morphed into those for a nation, with escalating resistance and consequences. Mandela’s given name was “Rolihlalhla,” which literally means “to pull a branch of a tree,” and which is colloquially equated with “troublemaker.” How did his parents know?
As we walk into our courtrooms, we proudly wear the badge of “troublemaker,” within appropriate bounds of ethics and reason. While combating inequity, we must still remain mindful of our code of ethics. In offering advice to young lawyers, Lincoln urged that “no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”
Lincoln’s advice was sound. Taking it even further, if you are not cut out to be a trial lawyer, the law is still a noble calling, available for the skilled resolution of conflict. Gandhi, after being unable to aggressively cross-examine a witness, reportedly returned the legal fee to the client with the advice that he secure other counsel. He then changed the direction of his practice.
“I had learnt the true practice of law. I had learnt to find the better side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me, that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”
Gandhi’s revelation as to where his talent and motivation pointed were undoubtedly influenced by his courtroom experiences, but was it the cases, the process or even his own constitution that shaped his decision? His legacy would dictate the most beneficial interpretation of his words.
While a mutually agreeable settlement is the preferred method for conflict resolution, trial lawyers know that is not always possible. Indeed, Lincoln is famous for discouraging litigation, but was up to the task when it became necessary. Many works have studied his ingenuity and integrity during courtroom battles, waged on behalf of all manners of clients. His resiliency was well honed in the courtroom, enabling him to move forward towards the presidency after gut-wrenchingly losing eight elections for public office. His ideals of freedom and equality fueled his resolve.
Good trial lawyers are steadfast and not easily derailed on the path to justice. Whether in today’s climate we need to slow down, pick up and convert passengers, or barrel through obstacles on the track, we head towards the station with regularity and purpose, with our professional ancestors having paved the way.
Good company indeed.
Evan M. Goldberg is a partner at Trolman, Glaser & Lichtman, past chair of the New York State Bar Association’s Trial Lawyers Section and a current officer of NYSTLA.
